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Is social media recruiting a discrimination land mine?

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Image taken from: www.expertbusinesssource.com/

Here’s a question about an issue that is becoming increasingly relevant:

By using social networking sites—such as Twitter, Facebook and LinkedIn—to search for and recruit employees, are employers discriminating against groups that are less likely to use those services?

It might sound like a strange problem, but a quick Internet search of the terms “social media recruiting discrimination” leads to many pages of results discussing the legal implications of recruiting via the social web. A recent article in U.S. human resources magazine, Workforce Management, quotes Jessica Roe, A Minneapolis lawyer:

“Networking sites, including Twitter, exclude whole populations. … We are going to end up with a very homogeneous workforce. The social networks represent limited social groups and very small labor pools. It’s an enormous issue.”

The article’s author, Fay Hansen, goes on to point out that, “According to the latest data from Quantcast, only 5 percent of LinkedIn users are black and only 2 percent are Hispanic.”

Her point being that employers who advertise through such media are neglecting their duty under human rights legislation to open hiring to as diverse a population as possible.

The Canadian Human Rights Act states clearly:

It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.

But that’s not the only issue. Some lawyers and commentators claim that employers might also get into trouble for taking a peek at candidates’ social networking profiles or typing their names into a search engine as part of their background checks. For one, even a cursory glance at a person’s Facebook public profile could give the employer more information than it would otherwise have access to, prior to an interview. This includes the candidate’s gender and race, and possibly her or his age and religion. Human rights law prohibits employers from making hiring choices based on any of these criteria (except in very specific cases), but it also prevents employers from building candidate lists based on these criteria (and others).

And then there’s the question of the accuracy of information one finds on the Internet. What if an employer makes a decision not to hire a candidate based on erroneous information the employer uncovers? Obviously that spells “Trouble”.

A recent article from HRVoice.org, the online magazine of the British Columbia Human Resources Management Association, quotes Steve Williams, director of research at the Society for Human Resource Management:

“HR tells hiring managers that if you use social networking sites, you must verify the information to avoid liability. … Misuse can lead to infringement of privacy or unintentional discrimination.”

John Rossheim, the author continues: “If, for example, you allow information gleaned online about an applicant’s age or marital status to affect a hiring decision, you could invite a lawsuit.”

It seems to me that there is little difference between Internet networking and the sort of informal word-of-mouth networking that many people claim leads to most interviews and hiring—only that the word spreads farther and faster. But I’m sure many others feel differently. How about you and your company?

For more information, take a look at this FAQ list from McCarthy Tétrault on HRinfodesk: Social Media Sites and Privacy at Work

Adam Gorley
First Reference Human Resources and Compliance Assistant Editor

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Adam Gorley

Adam Gorley is a copywriter, editor and researcher at First Reference. He contributes regularly to First Reference Talks, Inside Internal Controls and other First Reference publications. He writes about general HR issues, accessibility, privacy, technology in the workplace, accommodation, violence and harassment, internal controls and more. Read more
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3 thoughts on “Is social media recruiting a discrimination land mine?
  • Good point, Sandra. However, employers that believe they cannot “get caught” do so at their own peril. It reminds me of of indirect discrimination of years ago when employers had minimum height requirements. Not discriminatory in itself but the EFFECT was discriminatory–it excluded many women and both men and women of certain races. These employers eventually “got caught” via human right regulation and these kinds of practices are now forbidden. I can see similiar complaints being generated in association with these practices. The motto of my consulting firm is “Learn–don’t Litigate.” Employers can do so by learning lessons from the past.

  • Sandra says:

    I definitely agree with you Andrew, the problem in my mind is enforcing it. How would one even know that a certain company/employer is discriminating this way in order to take action?
    I think employers that discriminate will keep doing so, social media will just make it easier for them. It’s unfortunate.

  • Thanks for this timely advice. I am a workplace human rights advisor and I am constantly helping my clients adapt to the legal, and often hidden, challenges imposed upon employers by technology and the effect it has on human behaviour.
    Employer policies that have a discriminatory effect are contrary to human rights legislation. This indirect discrimination is a practice employers need to be aware of and take steps to ensure they are NOT practising.